93 Decision Citation: BVA 93-00360
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-14 557 ) DATE
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THE ISSUE
Entitlement to an increased evaluation for postoperative
residuals of removal of semilunar cartilage from the right
knee, rated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. The veteran served on active duty
from September 1942 to September 1943. In August 1991, the
RO promulgated a rating decision continuing the 20 percent
evaluation for postoperative residuals of surgery for the
right knee. The notice of disagreement for the above
determination was received in October 1991. The statement
of the case was issued in November 1991. The substantive
appeal was received in November 1991. A hearing was held
before a hearing officer at the RO in February 1992. In a
March 1992 decision, the hearing officer affirmed the
determination previously entered. A supplemental statement
of the case was issued in April 1992. The representative,
Disabled American Veterans, submitted a written argument in
July 1992. The case was received and docketed at the Board
in August 1992. The representative submitted additional
written arguments in November 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that the RO committed error in
continuing the 20 percent evaluation for his disability of
the right knee. He argues that his disability of the right
knee is more disabling than currently rated, thereby
warranting assignment of a higher evaluation.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that the record supports assignment of
an increased evaluation of 30 percent for postoperative
residuals of removal of semilunar cartilage from the right
knee.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The postoperative residuals of surgery for the right
knee are productive of severe impairment.
CONCLUSION OF LAW
The schedular criteria for an increased evaluation of
30 percent for postoperative residuals of removal of
semilunar cartilage, the right knee, have been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ Part 4,
4.7, Diagnostic Code 5257 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
We have found that the veteran's claim is plausible and,
therefore, "well-grounded" within the meaning of 38 U.S.C.A.
§ 5107(a) (West 1991). We are satisfied that all relevant
facts have been properly developed, that the evidentiary
record is sufficiently complete, and that no further
assistance to the veteran is warranted in order to comply
with our duty to assist him in the development of facts
pertinent to his appeal. Sanders v. Derwinski,
1 Vet.App. 88 (1990); Murphy v. Derwinski, 1 Vet.App. 78
(1990); Littke v. Derwinski, 1 Vet.App. 90 (1990); and
Seavey v. Derwinski, 2 Vet.App. 262 (1992).
The veteran has contended that his disability of the right
knee is more disabling than currently rated. As fact-finder
in his case, we are required to weigh and analyze all the
evidence of record. Sanden v. Derwinski, 2 Vet.App. 97
(1992). Associated with the above requirement is an
obligation to assess the credibility of the veteran's
statements, both oral and written, pertaining to the
severity of his disability of the right knee. O'Hare v.
Derwinski, 1 Vet.App. 365 (1991); and Ferguson v. Derwinski,
1 Vet.App. 428 (1991). We find that the veteran's
statements pertaining to the severity of his disability of
the right knee are not only credible, but corroborated by
the evidence of record. Wood v. Derwinski, 1 Vet.App. 190
(1991); and Smith v. Derwinski, 2 Vet.App. 137 (1992). In
the following paragraphs we will explain with sufficient
clarity our determination that an increased evaluation of
30 percent is warranted for the veteran's right knee
disability. Sammarco v. Derwinski, 1 Vet.App. 111 (1991).
A review of the service medical records discloses that the
veteran had a disorder of his right knee prior to active
service; however, he experienced injury while on active duty
and required additional surgery. The RO granted entitlement
to service connection for disability of the right knee, then
classified as internal derangement, which was assigned a 20
percent evaluation when it promulgated a rating decision in
February 1944. Later dated medical records show that the
veteran has experienced periodic exacerbations of his
disability of the right knee. More recently dated VA
orthopedic outpatient treatment reports show that he has
required frequent treatment for ongoing symptomatology, for
the most part manifested by effusion, pain, tenderness, and
instability. He was afforded the benefit of a special
orthopedic examination by VA in August 1991. At that time
he reported using a brace on his right knee and a cane in
the right hand to give support. He had a well-healed medial
parapatellar scar. There were tenderness in both the medial
and lateral joint line and minimal patellofemoral grating.
Flexion was to approximately 80 degrees. Radiographic
studies were interpreted by the examiner as reflective of
rather severe degenerative changes in all compartments of
the knee.
At the hearing held at the RO, the veteran described the
disabling manifestations of his disability of the right
knee. It is our opinion that the evidentiary record has
presented a question as to which of two evaluations would
more properly classify the severity of the disability of the
right knee. The current 20 percent evaluation contemplates
not more than moderate impairment. It is our opinion that
the clinical objective findings, when evaluated in
association with the veteran's symptomatic complaints,
suggest a level of impairment which more closely
approximates diagnostic criteria for assignment of the next
higher evaluation of 30 percent under Diagnostic Code 5257
of the VA Schedule for Rating Disabilities. 38 C.F.R. § 4.7
(1991). Severe impairment of the knee is required for
assignment of the next higher evaluation of 30 percent.
Radiographic studies have demonstrated severe arthritic
changes. The veteran has required frequent treatment on an
outpatient basis. There exists the possibility that he may
need a total knee replacement. Under Diagnostic Code 5256,
a 40 percent evaluation is warranted for ankylosis of the
knee with the knee fixed in flexion at an angle between
10 degrees and 20 degrees. This is not the veteran's case.
Similarly, a 40 percent evaluation would be assignable under
Diagnostic Code 5261 if the veteran's extension was limited
to 30 degrees. This is not the veteran's case. For the
above reasons, we conclude that the record supports
assignment of an increased evaluation of 30 percent for
postoperative residuals of removal of semilunar cartilage
from the right knee. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ Part 4, 4.7, Diagnostic Code 5257 (1991).
ORDER
An increased evaluation of 30 percent for postoperative
residuals of removal of semilunar cartilage from the right
knee is granted, subject to laws and regulations governing
the effective dates of awards.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
M. SABULSKY HARRY M. McALLISTER, M.D.
J. U. JOHNSON
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.